т.у.
CONFIDENTIAL
Pa.
(93)
in Store
'The 2 telegrams wen sent out today, Q12/10
Mr Stone, HKD
From:
Paul Fifoot
Legal Advisers
Date: 11 October 1990
ን
HKB 012 16
RECE
17 OCT:990
(90
HONG KONG: CONSTITUTIONAL ISSUES
Baj
There are two outstanding telegrams from Hong Kong on constitutional issues.
1.
Hong Kong telno 2786: Validity of Acts by Legislative Council
2.
It is usual to include in modern colonial constitutions a provision preserving the validity of acts of a legislature notwithstanding the participation of an unqualified person. The reason why there is no such provision in the UK Parliament (paragraph 4 of TUR) is that no court may enquire into the validity of proceedings in Parliament. This is not the case as regards a non-sovereign legislature.
3.
I assume that the absence of such a provision in Hong Kong is due to the comparative antiquity of the Letters Patent and to the fact that originally all members were officials or appointed.
4. It would, therefore, be highly desirable to add the modern provision to the Royal Instructions. I attach a draft of a telegram to Hong Kong which sets out the proposed amendment with an alternative provision as regards quorum. If you agree would you have the telegram sent off.
Hong Kong telno 2826: Appointments under Article XIV of the Letters Patent
This is a matter which certainly needs to be put right. This will require a further amendment to the Letters Patent.
5.
6. TUR appears uncertain as to what precise course it wishes to adopt. Whatever is done needs to take account of the fact that some appointments will be made under statute
(ie ordinance) and some, probably the majority, by the Governor or his delegate. I think we need to await Hong Kong's further views before we start drafting.
Whatever is done, it will, I believe, also be necessary to validate existing appointments made, irregularly, under section 63 of CAP 1.
7.
I attach a telegram in reply to TUR. you send it off.
8.
If you agree will
5PFAAH
Paul Fifoot
CONFIDENTIAL